For more than forty years, the law firm of Robert B. Fitzpatrick, PLLC has been a leading force in employment law. Robert B. Fitzpatrick, PLLC is nationally recognized as a premier employment law firm. The National Law Journal describes senior partner Robert B. Fitzpatrick as among the top employment lawyers in the country. Washingtonian Magazine hails him as "tops in employment law" in the Washington, D.C. area.
-- http://RobertBFitzpatrick.com

In Hamilton, the
employer, approximately two years after the husband’s e-mail to his wife,
issued an electronic usage policy.That
policy, among other things, stated that the employer could review “stored”
e-mails.Subsequently, the panel held
that defendant had failed to maintain the confidentiality of the
communications, and thereby vitiated the marital privilege, by “communicating
with his wife on his workplace computer, through his work email account, and
subsequently failing to safeguard the emails.”The Court noted that the marital privilege “should be allowed only when
it is plain that marital confidence cannot otherwise reasonably be preserved” (see Wolfle v. United States, 291 U.S. 7,
14 (1934)) and, reasoning that spousal communication did not require the use of
a work computer or work e-mail account, found that the privilege had been
waived.

The panel did note, in passing, an argument by the
Electronic Privacy Information Center, writing as Amicus Curiae, that it would be “extreme” to “require an employee
to scan all archived e-mails and remove any that are personal and confidential
every time the workplace use policy changes.”While agreeing that “these arguments caution against lightly finding
waiver of marital privilege by e-mail usage” the Court nevertheless dismissed
this line of reasoning, stating only that “the district court found that
Hamilton did not take any steps to
protect the emails in question[.]”

Unfortunately, the Court’s analysis omits any discussion of
the actual location(s) where Hamilton’s e-mails were stored on the employer’s
systems.As a practical matter, it is
likely that the e-mail was stored on Hamilton’s laptop, as well as the
employer’s servers, back up locations (which may be physical tapes and/or cloud-based
storage), and possibly other locations within the employer’s electronic
systems.This detail takes on enormous
significance due to the legal and practical difficulties presented by deleting
information located on storage media which are, potentially, outside of the
employee’s control.For example,
employers regularly have policies regarding the unauthorized destruction of
data, unauthorized access to certain portions of their data systems (for
example, backups), in addition to the practical question of efficiently
reviewing and redacting years worth or archival e-mails.Furthermore, the Court failed to consider the
potential legal implications posed by the Computer Fraud and Abuse Act to
employees who delete data from their employer’s systems.

In short, because Hamilton did not risk violating company
policy by accessing and wiping his e-mails, the Court found that he had waived
the privilege with respect to the e-mail communication. The Court failed to
squarely address the problem of where the e-mails were stored, whether an
employer would permit an employee to unilaterally wipe e-mails off the
company’s server, or the severe difficulties inherent in successfully and
permanently removing such materials beyond the employer’s ability to retrieve
them.The Court also failed to grapple
with the prospect that, if Hamilton successfully deleted material from his
employer’s systems, that he might well have violated
the provisions
of the Computer Fraud
and Abuse Act or the Virginia Computer Crimes Act, Va. Code § 18.2-152.1.While misusing access or information lawfully
provided to the employee may not violate the CFAA under the Fourth Circuit’s
recent ruling in WEC Carolina Energy
Solutions, LLC v. Miller, 687 F.3d 199 (4th Cir. 2012), attempting to
access backup tapes or cloud storage may well exceed authorized access even
under the standard in Miller. In short, the Court’s suggestion that Hamilton
did not take appropriate measures to remove the stored e-mails, and thus waived
privilege, seems ill-considered.

The decision in Hamilton,
unless set aside en banc, suggests
that the Court would also find the attorney-client privilege waived in similar
circumstances. This contrasts with the
recent decision, which we noted in our recent
blog, of the Canadian
Supreme Court, which has held that employees do indeed have a protectable
privacy interest in their company-issued computers.On that note, it is worth noting Justice
Sotomayor’s concurrence in United States
v. Jones, 132 S. Ct. 945 (2012), in which she opined that “it may be
necessary to reconsider the premise that an individual has no reasonable
expectation of privacy in information voluntarily disclosed to third parties”
as “[t]his approach is ill suited to the digital age, in which people reveal a
great deal of information about themselves to third parties in the course of
carrying out mundane tasks.”132 S. Ct.
at 957 (discussing locational information provided through the use of GPS
systems).

Here, many courts would have held that, in the absence of an
electronic usage policy, Hamilton had a reasonable expectation of privacy when
he e-mailed his wife back in 2006.The
breathtaking aspect of the Hamilton
decision is the Court’s holding that Hamilton’s reasonable expectation was
defeated years later after the employer issued an electronic policy because
Hamilton did not engage in conduct that no employee lawyer worth his or her
salt would counsel a client to do and conduct that many employers would seize
upon as misconduct and possibly even criminal under the Computer Fraud and
Abuse Act.In short, while this blog
rarely criticizes courts, this is one of those rare instances where, in our
judgment, this decision is plainly wrong and, hopefully, will either be
withdrawn by the panel or set aside en
banc.

In State ex rel. Mass.
Mutual Life Ins. Co. v. Sanders, 724 S.E.2d 353 (W.V. 2012) the West
Virginia Supreme Court adopted the so-called “apex deposition rule”.This rule protects senior officers of a
corporation from being deposed until other methods of discovery have been
exhausted.As articulated by the Court,
the rule prevents a party from deposing a senior corporate officer unless it
can demonstrate:

(1) that there is a reasonable indication that the
official’s deposition is calculated to lead to the discovery of admissible
evidence, and (2) that less intrusive methods of discovery are
unsatisfactory, insufficient or inadequate.

While this rule does not prohibit deposing senior officers,
it does attempt to avoid placing an undue burden on those individuals. The apex
deposition rule has been adopted by several other courts, including the courts
in Michigan, Alabama, California, Rhode Island, Oklahoma, and Texas.See Evans
v. Allstate Ins. Co., 216 F.R.D. 515 (N.D. Okla. 2003) (defendant was
granted a protective order prohibiting depositions of its CEO, Senior Vice
President, and Chief Financial Officer); Baine
v. Gen’l Motors Corp., 141 F.R.D. 332 (M.D. Ala. 1991) (Court quashed
deposition of one of defendants Vice Presidents due “less for the potential for
harassment than for the possibility of duplication, inconvenience, and
burdensomeness” without prejudice to plaintiff’s ability to take said
deposition later of intervening discovery was revealed to be insufficient); Mulvey v. Chrysler Corp., 106 F.R.D. 364
(D.R.I. 1985) (Court ordered interrogatories, rather than deposition, of Mr.
Lee Iacocca due to potential for harassment and abuse of deposition given Mr.
Iacocca’s “singularly unique and important” nature without prejudice to later
deposition if still warranted following interrogatories); Alberto v. Toyota Motor Corp., 796 N.W.2d 490 (Mich. Ct. App. 2010)
(granting motion to quash deposition of defendant’s Chairman and CEO, and
President and COO due to their lack of personal knowledge of the subjects at
issue); Crown Central Petroleum Corp. v.
Garcia, 904 S.W.2d 125 (Tex. 1995) (Texas Supreme Court granted writ of
mandamus directing trial court to vacate an ordered video deposition of
defendant’s Chairman and CEO when the CEO filed an affidavit attesting that he
had no personal knowledge of the events at issue); Liberty Mut. Ins. Co. v. San Matea Cnty. Superior Ct., 10 Cal. App.
4th 1282, 1289 (1992) (Court issued a “peremptory writ of mandate” ordering
lower court to enter a protective order prohibiting plaintiff from taking the
deposition of defendant’s CEO, as the CEO had signed an affidavit expressing
ignorance of the facts sought by the plaintiff.).

It should be emphasized that, in none of the cases cited
above, does the apex deposition rule entirely prohibit a party from deposing
high-level corporate officers under all circumstances.Rather, the rule is intended to order discovery
more efficiently by requiring the parties to attempt other forms of discovery
before resorting to the deposition of an “apex” officer.Alberto,
796 N.W.2d at 495.In Alberto, the Michigan Court of Appeals
aptly explained one popular rationale behind the Apex deposition rule – that
high-level corporate officers “rarely have specialized and specific first-hand
knowledge of matters at every level of [a] complex organization” and that,
before ordering the deposition of such an individual “it must be demonstrated
that the officer has superior or unique knowledge of facts relevant to the
litigation.”Id. While this is one popular rationale for the rule, other courts
have relied on the possibility of undue burden or harassment in applying the
apex deposition rule.See, e.g.Baine v. Gen’l Motors Corp., 141 F.R.D. 332 (M.D. Ala. 1991); Mulvey v. Chrysler Corp., 106 F.R.D. 364
(D.R.I. 1985).

In Mansfield v.
Bernabei, 727 S.E.2d 69 (Va. 2012),the
Virginia Supreme Court affirmed the trial court’s dismissal of plaintiff’s
complaint for defamation predicated on statements made about plaintiff, an
attorney, in a draft complaint and demand letter.Plaintiff was an attorney employed by a
residential condominium which also, at one time, employed defendant.Upon his termination, defendant sent a demand
letter and draft complaint claiming that he had been discriminated against on
the basis of his race to numerous individuals and entities.Subsequently, the complaint was actually
filed in substantially similar form.The
Complaint named plaintiff as a defendant due to his alleged involvement in
defendant’s termination.Plaintiff
subsequently filed suit, alleging that he was defamed by material in the draft
complaint.Affirming the trial court’s
dismissal of plaintiff’s defamation action, the Virginia Supreme Court held
that the allegations made in the draft complaint were protected by the absolute
judicial privilege.In so holding, the
Court was unpersuaded by plaintiff’s contention that the draft complaint and
demand letter were not covered by the privilege because they were not part of a
pending judicial proceeding.Rather, the
Court explained, the privilege extends to communications tangentially related
to potential litigation it is “material, relevant, or pertinent” to the
judicial process.In the context of
communications preliminary to proposed judicial proceedings, this means that
the reviewing court must examine whether “1) the statement was made preliminary
to a proposed proceeding; 2) the statement was related to a proceeding
contemplated in good faith and under serious consideration, and 3) the
communication was disclosed to interested persons.”

The scope of judicial privilege for pre-litigation
statements is not unlimited.In Nguyen v. Proton Tech. Corp., 69 Cal.
App. 4th 140 (Cal. Ct. App. 1999) the California Court of Appeals found the
privilege extends only to communications which are logically connected to the
subject of the litigation.Furthermore,
conduct which violates the Rules of Professional Conduct, as well as outright
threats, may fall outside of the ambit of the privilege.In Nguyen,
the Court explained that the privilege “does not prop the barn door wide open
for any and every sort of prelitigation charge or innuendo, especially
concerning individuals” and emphasized that “most potential abuse of this
privilege for prelitigation communications can be prevented by enforcement of
the relevancy requirement.”Accordingly,
the Court in Nguyen found that
defendant’s conduct, which included notifying plaintiff’s new employer of his
prior criminal record and contacting plaintiff’s parole officer to inform him
of plaintiff’s allegedly competitive behavior, was not protected by the
privilege.

Another remedy may be available to plaintiffs in states with
Anti Strategic Lawsuits Against Public Participation (Anti-SLAPP) statutes,
such as the District of Columbia and California.While these lawsuits vary somewhat in their
scope and in the remedies available thereunder, D.C.’s Anti-SLAPP statute, D.C.
Code § 16-5501 et seq. provides that
“[a] party may file a special motion to dismiss any claim arising from an act
in furtherance of the right of advocacy on issues of public interest within 45
days after service of the claim.”See also, e.g.,Cal. Civ. Proc. § 425.16 (California’s Anti-SLAPP statute). This “special motion to dismiss” is intended
to prevent the assertion of claims or counterclaim “without substantial merit
brought against individuals or groups with the intention of silencing the
opponents, or at least diverting their resources.”See Kathryn
W. Tate, California’s Anti-SLAPP
Legislation: A Summary of and Commentary on Its Operation and Scope, 33
Loy. L.A. L. Rev. 801, 802-03 (2000).Accordingly, to the extent that these defamation lawsuits are brought to
deter plaintiffs from filing legitimate claims, they may be subject to
peremptory dismissal under state Anti-SLAPP statutes.See
Dove Audio, Inc. v. Rosenfeld, Meyer & Susman, 47 Cal. App. 777 (Cal.
Ct. App. 1996) (affirming lower court’s decision to strike appellant’s
complaint for defamation, predicated on statements in a pre-litigation letter
distributed to third parties, based in part on the California Anti-SLAPP
statute). This is especially
significant, as many such statutes – including the D.C. Anti-SLAPP statute –
provide that a moving party who prevails on their motion may be awarded
reasonable attorneys fees and costs.D.C. Code § 16-5504.

For additional information and background on this case and
the doctrine of Judicial Privilege, see:

Firm Website

About Me

Robert Brian Fitzpatrick is the principal in the law firm of Robert B. Fitzpatrick PLLC in Washington, D.C. where he represents clients in employment law and employee benefits matters. Mr. Fitzpatrick has concentrated his practice in employment law disputes for over forty years. He has represented clients in individual and class actions. He has represented clients in employment discrimination, workplace harassment, retaliation, age discrimination, FMLA, ADA, whistleblower, wrongful termination, non-compete, trade secrets, Computer Fraud and Abuse Act, and wage and hour claims among others. He counsels numerous executive clients regarding employment agreements and compensation issues. He has negotiated literally thousands of severance agreements. He has represented clients in practically every industry and profession, including government employees, employees in the hospitality industry, the high tech/computer, government contractors, transportation, entertainment, sports, financial services, trade associations, and academia.

Subscribe To

Follow by Email

@FitzpatrickLaw

@FitzpatrickLaw

Disclaimer

Note: Robert B. Fitzpatrick makes this blog available for educational purposes only. None of the content on this blog constitutes legal advice. All postings should be considered general statements of the law, not legal advice specific to your situation. Your use of the site or contact with me does not create an attorney-client relationship.

This site contains links to other sites, comments, and other information not created by Robert B. Fitzpatrick. No representations are made about the accuracy of information posted on this or other linked sites. Though efforts will be made to post current information, the law is constantly changing, and articles go out of date very quickly. No one should rely on information obtained from this blog, comments, or linked articles without first obtaining appropriate professional advice.